GENERAL TERMS & CONDITIONS OF DELIVERY, SALES AND PAYMENT OF IDA FOUNDATION VIA NCDCONNECT
1
General scope of application
1.1
These General Terms & Conditions shall apply to all offers, quotations, supplies and services in the broadest sense to be rendered by Stichting International Dispensary Association,a civil-law foundation, also trading under the name of IDA Foundation, having its registered office at Slochterweg 35, (1027 AA) Amsterdam, the Netherlands (hereinafter to be referred to as "IDA"), as well as to all (additional) agreements between IDA and a Buyer (hereinafter to be referred to as the "Buyer").
1.2
The General Terms & Conditions are amended from time to time and will be published on https://ncdconnect.solvoz.com. The most recent published version shall apply to future agreements, subsequent or partial orders and/or followup orders, even if in a particular case they have not been transmitted or otherwise handed over to the Buyer.
1.3
Deviations from the General Terms & Conditions may only be agreed in writing and will only apply to the specific agreements in respect of which the deviations were agreed upon and implemented.
1.4
If one or more of the provisions of the General Terms & Conditions are void, or are declared void by means of judicial intervention, the remaining provisions of the General Terms & Conditions will continue to apply in full. At such times, IDA and the Buyer will consult to agree new provisions to replace the provisions that are void or that were declared void, whereby, if possible, the intention of the original provisions must be considered as much as possible.
1.5
No extension of time or waiver or relaxation of any of the General Terms & Conditions shall operate as an exclusion against any party in respect of its rights under those General Terms & Conditions, nor shall it operate to preclude such party thereafter from exercising its rights strictly in accordance with these General Terms.
1.6
As part of IDA's Buyer qualification procedure, the Buyer must provide proof that they follow EU Good Distribution Practice (GDP) of medicinal products for human use (2013/C 343/01). The Buyer shall complete and sign the qualification letter from IDA and provide supportive evidence(s) upon request.
1.7
For purposes of theseT&C "in writing" or "written" shall betaken to mean: by letter or electronically
2
Definitions
2.1
"Buyer": the organization or person who enters into an agreement with IDA with the purpose to buy Products and/or Services from IDA Foundation.
2.2
"General Terms and Conditions": the general trading terms and conditions set out in this Agreement.
2.3
"Agreement": the contract between IDA and the Buyer for the purchase of Products and/ or Services.
2.4
"Written": in these General Terms letter, fax,e-mails and (uploaded) electronic data are equal to written documents.
2.5
"Products" means any products (including but not limited to pharmaceuticals, medical supplies, medical kits, laboratory and hospital equipment) handled, stored or transported by IDA on the instructions of the Buyer, and Products shall include any shipper carton, container, pallet, Styrofoam box or any other form of packaging or equipment used in connection with or in relation to such Products.
2.6
"Services" means any service that IDA carries out on the instruction of the Buyer, including but not limited to procurement, inventory management, warehousing and the transportation of pharmaceuticals and medical supplies as well as technical assistance carried out at the instruction of the Buyer.
2.7
Words importing one gender shall be treated as importing any gender, words importing individuals shall be treated as importing corporations and vice versa, words importing the singular shall be treated as importing the plural and vice versa, words importing the whole shall be treated as including a reference to any part thereof, and expressions denoting a natural person shall be treated as denoting a legal entity and vice versa.
3
Order of priority
3.1
In the event of any discrepancies between the special conditions set forth in the sales quotation and these T&C, the order of priority is the following: (1) the mutual signed sales quotation and (2) these T&C.
4
Insolvency / Bankruptcy
4.1
In the event that the Buyer becomes insolvent or commits any acts of Insolvency or applies for bankruptcy or goes into liquidation, IDA shall be entitled immediately to terminate the Agreement without notice and without prejudice to any other rights of IDA hereunder.
5
Force Majeure
5.1
Neither Party shall be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented owing to or occasioned by, directly or indirectly, any act of God, government, order or restriction, war, threat of war, hostility, sanction, revolt, riots, civil disorder, embargo, seizure, strike, labor dispute, fire, flood, explosion, pandemic (global or regional) or other cause or circumstance reasonably beyond the control of either Party (any such event, a "Force Majeure Event"); provided however, that if any Force Majeure continues for more than two months, either Party may terminate this Agreement by giving the other Party thirty (30) calendar days prior written notice of such intention to terminate without incurring any liability in regards to said termination.
6
Applicable Law and Jurisdiction
6.1
These General Terms shall be governed by and construed in accordance with the law of The Netherlands, explicitly excluding the United Nations Convention of the International Sale of Goods (CISG).
6.2
Any dispute, controversy or claim arising out of or in relation to these General Terms or the Agreement, including the (in)validity, breach or termination thereof, shall be settled by competent court in the place of business of IDA.
7
Offers
7.1
Offers made by IDA will be free of obligation. They will be valid for a period of thirty (30) days unless otherwise indicated in the offer. IDA will only be bound by a quotation if the acceptance thereof is confirmed by the Buyer in writing within this term of validity.
7.2
IDA shall be entitled at anytime by notice to the Buyer to cancel or resale from any offer in circumstances where it becomes impracticable or un-economical for IDA to carry out the contract at the offered rate and the Buyer shall have no claim whatsoever against IDA for any Ioss, damage, cost or expense that the Buyer might incur as a result of IDA canceling or reselling from the offer.
7.3
An order shall not come into effect until the sales quotation is signed by the buyer and (if applicable) prepayment is received by IDA. Any additional arrangements or amendments shall be binding only if confirmed by IDA in writing. The quantity, description and any specification for the Products shall be those set out in IDA's sales quotation.
8
Prices
8.1
The price of the Products and/or Services shall be as quoted in the IDA offer or at such price as IDA and the Buyer may agree upon in writing.
8.2
After the Buyer has submitted a request for proposal via NCDconnect, IDA sends a sales quotation to the Buyer indicating:
8.2.1
The price of the Products, the relevant Incoterm 2020, the validity period of the quotation, the mode of transport, the payment terms.
8.2.2
The Freight costs, which are based on an estimated volume and weight of the Products as indicated in the sales quotation and will be subject to change once the final shipping documents are known (actual freight costs to be paid by the Buyer). IDA is entitled to charge the Buyer a percentage on top of the current freight costs at its discretion (to be indicated on the sales quotation) to accommodate increases in the transport costs(if any).
8.2.3
If applicable, the pre-shipment inspection and quality control costs, which are based on an estimated number of shipments and batches (the Buyer is invoiced based on estimated costs).
8.2.4
The Transport insurance and Country risk War on Land (WOL) (if applicable), which are based on the total value of the sales quotation.
8.2.5
The IDA services fee or handling fee (if applicable) charged to the Buyer. The procurement services fee and handling fee are calculated from the total FOB or EXW costs of the Products.
8.2.6
Other costs (if applicable), which will be determined on case by case basis.
8.2.7
Some installation and configuration services, start-up services, training, and technical support maybe necessary for some of the Products ordered. The costs of these services are not covered by the cost of the Products itself and will be shown on a separate line in the sales quotation (to be paid by the Buyer).
8.3
All prices quoted for products, services and transport are based on the prices that apply at the time of the quotation. If one or more of the costs, including prices of transport, products, raw materials, fees, etc. change, IDA has the right to pass on these changes to the Buyer. IDA will be obliged to provide proof of changes to the Buyer.
8.4
The price is based on the agreed INCOTERM 2020. This price is excluding value-added tax or any other applicable taxes.
8.5
In case the Buyer requires a change to the orders or a cancellation is required, IDA will, to the extent possible, accommodate those changes or cancellation. However, the relevant supplier may charge a cancellation/amendment fee, in an amount to be agreed between IDA and this supplier based on the amount of work completed as of the date of such cancellation or amendment. Such costs have to be reimbursed by the Buyer to IDA. In the event that Products have already been produced, the supplier may refuse such cancellation.
9
Payment
9.1
The payment terms are indicated in the sales quotation and are fixed on prepayment as a standard, unless the request for proposal indicates that the funding is subject to a grant or payment guarantee .
9.2
Unless otherwise agreed upon between IDA and the Buyer in writing, invoices shall be paid without any deductions within thirty (30) days upon issuing of the invoice where the invoice date shall be deemed as the date of issuing.
9.3
IDA reserves the right within a reasonable tolerance range of +/- 5% (in words: plus or minus five percent) to deviate from the agreed quantities for each type of Product to be supplied, without any right on the Buyer's part to delivery or return of the discrepancies between the quantity delivered and the quantity agreed, nor shall the Buyer be entitled to any damages or dissolution of the agreement either. In such event IDA shall adjust the price accordingly – either upward or downward.
9.4
In the event of failure to pay by the due date, IDA shall be entitled to charge past-due interest in the amount of the statutory interest rate, established by the Dutch Central Bank (De Nederlandsche Bank N.V.) from the date of default onward. Furthermore, IDA shall be entitled to charge extrajudicial collection costs of 10% of the outstanding invoices, with a minimum of USD 150. IDA shall further be entitled to suspend deliveries and/or cancel its outstanding obligations.
10
Shipment and Passing of Risk/Export Controls
10.1
All risks into the Products shall pass to the Buyer upon dispatch or shipment. This shall apply even in the case of partial shipments and if IDA has assumed additional obligations such as freight or shipping charges, direct delivery and installation. Any deviation from this will be reflected in the agreed INCOTERMS 2020 in writing.
10.2
If dispatch or shipment is delayed due to circumstances for which the Buyer is responsible, the risk including the risks associated with shelf-life shall pass to the Buyer as of the date of notification of readiness for dispatch or shipment.
10.3
If the delivery of the products by IDA is subject to the granting of an export or import license by a government and/or a governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import law or regulations, by placing the confirmed order, the Buyer confirms that he/she holds or will arrange the relevant licenses, registration or other permits necessary to purchase or import the Products. Prior to placing an order, the Buyer needs to inform IDA on any changes in the country of import regulatory requirements.
10.4
By accepting IDA's offer, entering into an agreement, and/or accepting any of IDA's products and/or services, the Buyer agrees that it will not handle IDA products and/or documentation related hereto in violation of any applicable export or import control laws and regulations.
10.5
If an end-user statement is required, the Buyer shall inform IDA thereof, and the Buyer shall provide IDA with such document upon IDA's first written request.
10.6
Taxes, levies duties, and deposits applicable will be as reflected in the INCOTERM 2020 or as agreed by both parties.
11
Registration
11.1
In the request for proposal, the Buyer has to indicate if registration in the country of destination is required.
11.2
If no registered Product is available then the Buyer will commit to supporting IDA with obtaining a waiver to import the Products in case the obligation for IDA to import follows from the applicable INCOTERMS.
11.3
If the Buyer has declared that registration of the Products is not required in the country of destination, the Buyer accepts full responsibility for this declaration.
12
Country mandated pre/post-shipment inspection
12.1
Following IDA risk-based approach, pre-shipment inspection will be conducted by IDA only for pharmaceutical products which are not currently authorized in stringently regulated markets as per the pre-decided frequencies agreed for suppliers supplying these products. Post-shipment inspections are normally not anticipated, unless there is a high risk of the Buyer not accepting the Products after shipment. By accepting and signing the sales quotation, the Buyer confirms its acceptance of IDA policy regarding pre-shipment inspection.
12.2
If the Buyer has declared that a country mandated pre/post-shipment inspection has to be performed by an independent registered inspection agency, the Buyer accepts responsibility and cost for opening an inspection file on the basis of IDA's proforma invoice in the country of origin and for sending the inspection file number to IDA at least three(3) weeks prior to the Product's readiness.
12.3
If the Buyer has declared that no (other) inspections are required, the Buyer accepts full responsibility for this declaration.
13
Import duties and taxes
13.1
IDA supports the Buyer in meeting its obligations related to exemption from taxation. IDA will provide required documents to the Buyer to apply for a tax exemption letter, as indicated by Buyer. The Buyer will subsequently obtain and share the tax exemption letter with IDA at least two (2) weeks prior to arrival of the Products. Costs deriving from the non-availability of such waiver will be applied to the account of the Buyer.
13.2
If import duties and taxes are payable, but a tax exemption cannot be obtained, IDA will invoice such taxes and the Buyer may have to refund to IDA the amount of such taxes.
13.3
If the Buyer has declared that no import duties and taxes are payable, the Buyer accepts full responsibility for this declaration.
14
Proceed to shipment
14.1
As soon as the Products are produced and released for shipment based on the inspection report and test results (if applicable), IDA will share the inspection report (when applicable) with the Buyer requesting the written approval to ship (green light) within three (3) business days.
14.2
For high quantity shipments,a loading inspection can be carried out to verify that Products are appropriately loaded in terms of quantity and quality in an acceptable standards of containers. The loading inspection agency is appointed by IDA and related costs will be charged to the Buyer as QA costs.
15
Delivery of the Products
15.1
When IDA has received the signed sales quotation and the pre-payment (if applicable) from the Buyer, IDA will place the purchase orders at the relevant supplier(s) and will confirm afterwards the delivery dates to the Buyer. Any delivery dates stated shall, however, be indications only and shall in no event be deemed to be deadlines. The delivery date specified by IDA is an estimate only. Time for delivery shall not be regarded as the essence of the agreement. IDA will take on a best- efforts obligation to adhere to the delivery date. Agreed delivery and completion periods can never be regarded as strict deadlines. If IDA does not deliver the products, IDA must be given a written notice of default and granted a reasonable period in which to comply with its delivery obligations.
15.2
For all Products, in case the desired delivery date of the Buyer (based on the lead times indicated in the sales quotation) cannot be met, IDA will do its utmost to deliver the Products as close as possible to the desired delivery date.
15.3
IDA reserves the right to make partial deliveries, in which event the terms and conditions set forth in the T&C shall also apply to each partial delivery.
15.4
If IDA is unavailable to deliver the products due to reasons for account of the Buyer, then IDA shall be entitled to place the products in storage until such times as delivery maybe affected. The Buyer shall be liable for any expense associated with such storage and delayed deliveries.
15.5
The DAP1 and DAP2 are modified Incoterms, whereby DAP1 includes customs clearance and DAP2 includes customs clearance and offloading.
15.6
Unless otherwise agreed upon, delivery of the products shall take place at the address specified in the Buyer's order and the Buyer shall be deemed to have accepted the products upon their delivery. The Buyer shall make all necessary arrangements to take delivery of the products whenever they are scheduled for delivery. In all cases the Buyer remains responsible for timely arrangement of the required import documents and storage space. Offloading means that IDA/IDA's freight agent is responsible for taking the Products from the containers/trucks, and handing them over to the warehouse designated by the Buyer, after which both the responsible warehouse employee and IDA's freight agent sign a Proof of Delivery (PoD) for receipt of the Products. The empty containers will be returned immediately to the carrier and will not be offloaded from the truck.
15.7
If the Buyer fails to take delivery of the Products on the time of delivery, the Buyer shall be in default, without any further notice of default being required, and IDA may, at its option: (i) dissolve the agreement without any judicial intervention being required; (ii) ship the Products at the Buyer's expense and risk; (iii) store the Products at the Buyer's expense and risk. All costs ensuing from the foregoing circumstances, including but not limited to the costs of storage and possible decrease in revenue, shall be paid by the Buyer. The foregoing shall not affect any other rights that IDA may have.
16
Demurrage and detention
16.1
Any demurrage or detention charges deriving from a situation which is beyond the control of IDA, such as, but not limited to situations referred to as force majeure, port congestions, customs clearance delays, non-availability of warehouse space and delays in offloading, shall be borne by the Buyer.
17
Insurance on products, Duties of Inspection and Notice of Defects
17.1
In countries with an increased country risk (WOL), any damage or loss resulting from acts related to increased country risk is not covered by the standard insurance. IDA follows the official IHS Foresight Country Risk Scores to determine if there is an increased country risk (WOL) in the countries of destination or countries of transit. If the country is rated as an elevated/high/severe risk country at the moment of quoting, IDA will include an additional premium applicable to the country to cover risk on-land.
17.2
The Buyer shall be obliged to inspect the packaging and the products immediately upon delivery and to report any damage or deviations in delivered amounts to IDA as well as the shipping agent. The Buyer shall also clearly mark the delivery documents by specifying the damage or deviations and the extent thereof.
17.3
Obvious defects, including but not limited to damages resulting from transport or deviations in delivered amounts shall be notified to IDA in writing without delay, in any event within two (2) working days after the Proof of Delivery (PoD) signature date. The PoD serves as official confirmation of receipt of the Products based on visual inspection. Any visible damage and missing quantities are to be reported in the PoD and cannot be claimed for afterwards. After that, the Buyer has fourteen (14) days after the PoD to check boxes and confirm acceptance of the Products and/or report any hidden damage using the Confirmation of Receipt (CRG) form, that IDA sends along with the Shipping Advice.
17.4
The Buyer loses the right to claim for lack of conformity of the products if the Buyer does not give notice to IDA specifying the nature of the lack of conformity within three (3) days after the Buyer has discovered such lack of conformity or ought to have discovered this.
18
Warranty
18.1
Section 18 shall only apply in the event no other specific warranty has been agreed in the agreement. Should any products be covered by a warranty issued by any third party, such third-party warranty terms shall apply.
18.2
IDA warrants that its products meet IDA's specifications at the time of delivery. All warranty claims on the specifications of the Products must be made in writing within 30 (thirty) days of receipt of the Products. IDA's sole liability and the Buyers' exclusive remedy for a breach of this warranty is limited to repair, replacement, or refund at the sole option of IDA.
18.3
To the maximum extent permitted by applicable law, IDA hereby expressly disclaims and denounces, and the Buyer expressly waives, any warranty regarding results obtaining using the Products, including without limitation any claim of inaccurate, invalid, or incomplete results.
19
Use of Products by the Buyer (obligations /indemnifications) , after sales service and preventive maintenance
19.1
The Buyer shall use the Products supplied in accordance with supplier's (storage) instructions only. Moreover, the Buyer undertakes not to trade the Products outside of any agreed territories. In no event shall the Buyer use the Products supplied in anyway that is contrary to, or otherwise derogates from, IDA's objects, without IDA's prior written consent.
19.2
If necessary, the Buyer must request the supplier of the Product (to the exclusion of other parties) to provide preventive maintenance services at a to be agreed additional fee on a case-by-case basis. Supplier's local/regional agents or distributors (to the exclusion of other parties) must be approached by the Buyer for after- sales services, including technical services and spare parts. Upon request, IDA will provide a list of official local distributors.
19.3
If the Products supplied – if such Products are medicines – are not registered in the country of destination, the Buyer warrants IDA that it is authorized to trade such medicines there.
19.4
The Buyer shall indemnify IDA against the consequences of any third-party claims, costs and damage ensuing from the Buyer's failure to perform its obligations under this article 15 and/or in the event that the warranty proves not to be (completely) correct.
20
Limitation of Liability
20.1
All liability of IDA shall be limited to direct damages arising from gross negligence or omissions of IDA and will under all circumstances be limited to the price paid for the Products and/ or the Services.
20.2
IDA will never be liable for in director consequential loss or damages, including stagnation in the regulated course of affairs within the organisation of the Buyer, loss of profits and/ or goodwill, missed savings and consequential damages, related in anyway with or caused by the Products of or performances by IDA.
20.3
The Buyer will indemnify IDA against and will hold IDA harmless against all liabilities, such as losses, damages or claims including but not limited to, third-party claims that are related, directly or indirectly, costs and expenses to the performance of the agreement and all related financial consequences save and except where the losses, damages, or claims arise out of the gross negligence acts or omission of IDA as provided in paragraph 20.1 of this clause.
21
Recall
21.1
The Buyer agrees to assist IDA in carrying out a recall, if any. To that end the Buyer is obliged to keep adequate records for traceability of the Products supplied for a period of at least five (5) years after the date of sale or use of the Products supplied. The records shall at least contain information about dates of sales or use, quantities, batch numbers and batch specifications and all such other information as maybe necessary for a possible recall. IDA shall always be entitled to inspect such records or to receive copies thereof from the Buyer.
21.2
In the event of a product recall, the Buyer shall render its full cooperation, by following instructions as provided by IDA in a product recall letter, so that this recall can be carried out promptly and effectively. If the Buyer fails to render its full and prompt cooperation to the conditions set forth in this article, IDA shall hold the Buyer liable for any damage suffered or to be suffered by IDA, including but not limited to damage pursuant to the product liability rules and damage as a result of negligence.
21.3
IDA shall be obliged to compensate the Buyer only to the extent that the Buyer meets all the requirements set forth in this article. IDA's liability in the event of a recall shall be limited to payment of the price at which the Buyer had purchased the Products covered by the recall or replacement of such Products, all at IDA's sole discretion.
22
Confidentiality
22.1
The Buyer is bound to confidentiality regarding information and data received from IDA. Information and data shall be deemed to be confidential if so labelled by IDA or if such confidentiality ensues from the nature of the information and/or data, in any event including all information related to incidents and serious side effects as referred to in article 17 "Insurance on products, Duties of Inspection and Notice of Defects".
23
Assignment
23.1
Without the prior written consent of IDA, the Buyer may not assign its rights and/or obligations under an agreement entered into with IDA to any third parties. IDA shall not unreasonably withhold its consent. This clause will have effect under the law of obligations and under property law within the meaning of article 3:83 lid 2 of the Dutch Civil Code.
23.2
IDA may assign its rights and obligations under the agreements entered into between IDA and the Buyer to another (legal) entity, either affiliated with IDA or otherwise, which assignment shall release IDA from its obligations vis-à-vis the Buyer. IDA shall notify the Buyer of the assignment by registered letter. The Buyer hereby agrees with such assignment, if any.
24
Consequences of Voidness or Voidability
24.1
If any provision of these T&C should be void or nullified, the other provisions of the T&C shall remain in full effect, and the parties shall consult to agree on new provisions to replace the void or nullified provisions, observing the intent of the void or nullified provisions to the extent possible.
25
Intellectual Property Rights
25.1
IDA reserves all intellectual proprietary rights and copyrights to and in all documents provided to the Buyer, including but not limited to cost estimates, drawings, and technical documentation. Such documents may not be made available to any third parties without IDA's prior written consent.